Bill Black debunks a law professor's tortured attempt to rationalize homophobia.
Most forms of open revulsion for despised minorities have been banished from academic literature. But the academic campaign against rights for gays is proud about its descent into ever more virulent attacks on gay people and homosexuality.
One stream of the attacks seeks to prove that gays and homosexual are inferior. The effort has been lead primarily by ultra-traditional Catholic scholars that have attempted to create a "new natural law" that would support the traditional Catholic positions on sex -- that masturbation, all gay sex, contraception, all sex between unmarried adult straights, and oral and digital sex by straight married couples are all grievous sins. However, George W. Dent, Jr., a law professor at Case Western Reserve University who believes that gay marriage is a threat to heterosexual marriage, points out what he views as disabling difficulties in these efforts by Catholic scholars. The premise of natural law is that it is "natural." That implies that thoughtful people, regardless of cultural or ethnic background, will form a consensus in support of the natural law principles. The concept of natural law is that it arises from humans' intrinsic moral principles. But humans overwhelmingly reject many of the principles of the purported natural law. Dent explains:
Although this doctrine is not overtly religious, all its leading proponents are Roman Catholics, and it contains elements that most Protestants and Jews reject, such as treating sex with contraception or any sexual act other than vaginal intercourse within marriage as immoral.
Catholics' actual sexual practices overwhelmingly reject many of the principles of the purported new natural law. Most Catholics masturbate, use contraceptives before and during marriage, engage in heterosexual sex prior to marriage, and engage in oral and digital sex before and during marriage. Virtually all Catholics engage in forbidden heterosexual sexual practices during their lives. They do not, as a group, display disabling guilt despite violating Church doctrine. Gay Catholics virtually all engage in homosexual sex. Dent concludes that the "new natural law" is "arbitrary" (its convoluted structure arises from the imperative of accommodating a Catholic doctrine that Dent finds incoherent). Dent finds that the new natural law is not new, natural, or a sound basis for law.
Dent is also frustrated with the Catholic scholars' admission that there is no way to use the "new natural law" to prove the superiority of heterosexuals:
Like any value system, the Catholic natural law doctrine of human sexuality can be neither confirmed nor refuted as can a mathematical computation.
Dent seeks to remedy both deficiencies in his July 2010 article, "Straight Is Better: Why Law and Society May Legitimately Prefer Heterosexuality". The article is a lengthy, impassioned attack on gays as depraved. That is the subject for another day. This essay addresses Dent's algebraic proof of the superiority of heterosexual marriage.
[H]omosexuality cannot create human life or the biological family. This point can be stated algebraically. Designate a committed, loving relationship between any two adults as "A." Assume for the moment that homosexuals are just as likely to create such a relationship as are heterosexuals. Now designate the ability of two people to create human life -- an ability possessed only by a male-female couple -- as "B." If we say that the homosexual "married" couple is just as good as the traditional married couple, then
A = A + B
If this statement is true, then "B" -- the capacity to create human life -- is worth zero; it is worthless, of no value.
Before taking on the algebra, the fundamental logic of this proof requires discussion. Dent's premise is that if society allows homosexuals in "committed loving relationships" to marry, we are saying that homosexuals are "just as good" as heterosexual couples. And according to Dent, that statement can only be true if the ability "to create human life" is "worthless." But marriage licenses have never represented society's determination that one couple is "just as good" as another married couple. Dent's contrary assumption about the test for marriage, essential to his "proof" of the superiority of heterosexuals, is baseless. Infertile heterosexual couples incapable of "B" have always been allowed to marry.
Under Dent's algebra, the value of "B" is not constant. It varies enormously among heterosexuals and, over time, it disappears for every female heterosexual and fails for every male heterosexual if they achieve a normal life expectancy. Using Dent's formula, we can "prove" that more fertile heterosexual couples are superior to less fertile heterosexual couples, and that married heterosexuals become less valuable as they age. Menopause makes B = 0 for heterosexual couples -- unless they divorce while the male is still fertile and he remarries and gets his positive "B" back.
Let's apply Dent's proof to other groups: let "A" have the same value as Dent assigned to it. Designate the ability to hear as "H." If we say that a loving couple that is deaf is "just as good" as a loving couple that can hear (A = A + H) then we are saying that the ability to hear is worthless. Anyone can play this game: apply Dent's formula by adding in a variable reflecting the ability to see, smell, run the 40 yard dash in under 6 seconds, dunk, speak Spanish, teach, suture, serve as a "point man" for an infantry patrol and sing -- or the willingness to adopt, serve as a firefighter, or volunteer to fill sandbags to stem a flood. Each of these skills and traits is valuable. One can imagine circumstances in which each of the skills could prove critical to a child's development or even the survival of a spouse, child, patient, or infantry platoon.
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As soon as we recognize that marriage has more than two relevant variables, Dent's mathematical proof of the inferiority of homosexual marriage collapses. Individuals are complex, and couples that love each other are far more complex than individuals because their interaction is what matters. There are thousands of relevant variables that would have to go into any meaningful equation that expreses how valuable a couple's marriage will be to society. We cannot value the relevant variables at any given time, much less predict the future values of these variables. No one can demonstrate that homosexual married couples would be inferior to heterosexual married couples.
If procreation is the good to be maximized, and if societal licensure really stimulated procreation, then we should bestow a special legal license for each child born. Dent's proof would become: Let "A" have the same value as Dent assigned to it. Let K = ∑"K1"+ "K2" + ... "Kn" (K = the cumulative value of each child born to the couple.) If we were to say that A = A + K, then we would be saying that children are worthless. Since Dent assumes that children have a positive value, and that having more children adds more value, if follows that married couples that produce children are superior to married couples that do not produce children, and that married couples that produce two children are superior to those that produce one child (and this progression continues).
Dent has an additional problem if he is correct that procreation is the societal goal justifying marriage. Homosexual marriage would increase procreation. Homosexual marriage, therefore, should be good for society under Dent's logic. Dent's attempt to respond to the internal inconsistency of his argument forces him to take ever more extreme positions:
Some adults created by artificial insemination have sued for the right to know who their fathers are, but does that go far enough? They have already been denied the right to grow up with their real parents. If that happened because their guardians had bought or stolen the child from the parents, we would consider the child gravely wronged and injured. How is the child any less wronged or injured by artificial reproduction?
Dent's consuming passion is preventing homosexual marriage. Because homosexuals generally reproduce via artificial insemination, Dent must oppose artificial insemination. But Dent cannot oppose artificial insemination only when it is used by homosexuals without displaying obvious bias. Dent is forced into taking the position that all artificial insemination should be outlawed on the grounds that the children are better off never being born. This requires Dent to assert that biology is everything. Adoptive parents are not "real parents" and artificial insemination means that children are "stolen" from sperm donors. Banning artificial insemination would enrage millions of heterosexuals with fertility problems and prevent hundreds of thousands of them from having children, but Dent's rage against homosexuals is so great that he's willing to consign heterosexuals with fertility problems to what he terms "sterile" relationships if it helps him block same sex marriage.
Dent's second argument is one he makes at great length, with strong rhetoric -- but no facts.
[R]ecognizing SSM [same sex marriage] will profoundly change the meaning of and respect for marriage and severely impair its benefits.
The inability of opponents of same sex marriage to support these claimed "profound" and "severe" harms to heterosexual marriage has always been their Achilles' heel. The title of the "Defense of Marriage Act" (DOMA) is pure propaganda. It is the Denial of Marriage Act. The irony is that while Dent's algebraic proof of the superiority of heterosexual marriage fails to support that claim, it does refute his assertion that same sex marriage will harm heterosexual marriage. Dent claims that the (purportedly) unique value of heterosexual marriage represents the sum of two benefits: A + B where "A" represents "a committed, loving relationship between any two adults" and "B" represents "the ability of two people to create human life." Same sex marriage cannot impair "the ability" of heterosexuals "to create human life" (though Dent's demand that artificial insemination be banned would impair the ability of millions of Americans "to create human life"). So, "B" is unaffected by same sex marriage (but reduced by Dent's proposal to bar artificial insemination). "A" is also unaffected by same sex marriage. There is no reason why heterosexuals will be unable to form "a committed, loving relationship" because homosexuals marry. However, if Dent is correct that the birth of children, particularly the birth of a child with some genetic link to the couple that will raise that child, does strengthen a couple's "committed, loving relationship," then Dent's proposal to ban artificial insemination will reduce the value of "B" for millions of heterosexuals and homosexuals. Dent's proposals reduce the total value of marriage to society under his mathematical formula.
William K. Black is an Associate Professor of Economics and Law at the University of Missouri-Kansas City. He is a white-collar criminologist and was a senior financial regulator. He is the author of The Best Way to Rob a Bank is to Own One.
What can progressives be thankful for this year?A lot, says Bill Black.
